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Guest Post on Constitutionalism in China: A Response to Tom

Tom has graciously invited me to respond to his recent posting on Chinese constitutionalism, and in particular to his reference to my forthcoming book with Stéphanie Balme. He may well regret it, because while he himself has described the book in most gracious terms, I must take exception with certain possible implications that could be inferred from his description. In doing so, I readily acknowledge using him as a straw-man. But despite their logical problems, straw-men can be very convenient framing devices. Tom’s description of China’s constitutional possibilities recapitulates – admittedly without necessarily endorsing – a particular way of looking at constitutions comparatively. It is a way that is common, if not ubiquitous, to the comparative constitutional analyses I see emanating from the US, and often from the West more generally. And it is a way that I strongly believe we have to begin freeing ourselves from.

At least insofar as his opening paragraph is concerned, Tom seems to be portraying China’s constitution in exceptionalist terms. He notes that it appears to be “serving programmatic and ideological rather than constitutionalist ends.” He also notes that “rather than providing for enforceable rules constraining government, the constitution is used either to bless changes that have already occurred or to announce new policies to be achieved in the future.”

These descriptions of the Chinese constitution are true enough. They are also quite common, indeed omnipresent, in American descriptions and critiques of China’s so-called “constitutional” system. Perhaps for this reason, I therefore read these descriptions as possibly implying that a more archetypical constitution actually works to serve other functionalities (which I will describe in more detail below)—that the Chinese constitution, to the extent it could be said to have a “constitution”, is in this regard exceptional.

(In fact, Tom does indeed draws similarities between China’s constitutional experiences and those of Mexico—similarities that I myself explored in 2002. But the reference to Mexico still evinces the possibility of a kind of essentialism, i.e., the possibility that the Chinese / Mexican experience is essentially only relevant to what we might call “the Global South”. But as I shall argue below, Tom could just as easily have related China’s constitutional development to that of the US, or to the West more generally—and I also argue that such a parallel would have actually been a much more useful referent, because it would have more effectively challenged the parochial assumptions that infect and corrupt our efforts to understand and evaluate the full diversity and possibilities of “constitutionalism” that manifest in human experience.)

It is this vision of Chinese (or perhaps Global Southern) exceptionalism that I strongly challenge. I argue that as described by Tom, China’s constitution is by no means exceptional, even by the standards and experiences of the Anglo-European “West.” As I shall describe below, the problem is that the particular comparative referents identified by Tom in his first paragraph are anachronistic. At best, they describe a mature constitutionals system, not an emergent one. And at least insofar as these emergent constitutional systems are concerned, it is the conditions that Tom describes in the context of the Chinese constitution that represent the norm, not those of his comparative referent.

That comparative referent sees constitutions as archetypically (1) juridified (i.e., constructed out of “enforceable rules”); (2) textualized (Tom’s entire description of China’s possible normative constitutional options derives solely from the text of the 1982 constitutional document); and (3) permanent. My strong suspicion is that these particular conditionalities are American in origin: they resonate quite strongly with what American’s like to glorify in their own constitution (nb. I’m an American). The problem is that these particular tropes only really began to attach themselves to American constitutional consciousness in the 1880 (see Michael Kammen’s The Machine that Would Go of Itself), about the same time as American constitution was ascending to its present status as a virtually religious document (representing what we might call a “mature” state of constitutionalism). But as applied backwards (as they too often are), to the founding, these tropes are largely mythological. As well described by Gordon Wood in The Radicalism of the American Revolution, the American constitution during the first three or four generations was in fact very ideological (see, e.g., Federalists vs. Anti-Federalists), very programmatic (Federalism was itself very much a kind of conservative political program), and even very fluid and responsive to leadership change (see especially the emergence of “Jacksonian Democracy”). Just like China’s present constitution.

Of course, if all one looks at is the text of the 1787 constitutional document (and the Federalist Papers), one does not see any of this—hence the lasting success of the historical mythologizing of the 1880. This is the “textualization” part of Tom’s comparative referent. And like the others, textualization has been a defining feature of American constitutional pride since the 1880s. But in fact, the constitutional text was probably the least important component of our early constitutionalism. It is true that the constitutional text did not change much in the first 80 years of our constitutional history. But our constitutional nevertheless effectively transformed itself during the first 35 years of its existence. The constitutionalism of Jacksonian democracy was not only nothing like that which the Framers sought to enshrine, it was in many way exactly what they had sought to avoid in the drafting of the 1787 text. The fact that the same text could accommodate such radically opposed constitutional visions is itself a testament to its irrelevance as a juridical source of authority. This hypothesis is confirmed in the study by Michael Kammen referenced above, which argues that prior to the Civil War, the constitutional document of 1787 functioned primarily as a symbol for the new American state rather than as a juridified construction of that state.

Nor is the experience of the American founding unique in this regard. A similar story could be told about the emergence of modern Western constitutionalism in England in the 1730s; about its role in the establishment of France’s post-Revolutionary state; and about its radicalization in England in response to early industrialization. Together with the American founding, these represent the first four incidence of modern Western constitutionalism. And in none of them, did the emergent constitutions evince textuality, jurification, or permanence / stability. Insofar as constitutional emergence is concerned, China’s experience actually represents the norm. And what I think of as “the American trope”, i.e., that trope referenced by Tom in his comparative description of China’s constitution, is what is exceptional—if not actually mythological.

I write this because as someone who has spent a lot of time exploring what one might call comparative constitutional development, I am distressed by the degree to which comparative constitutional analyses continue to draw exclusively and uncritically from these canonical and often very idealized tropes that Americans developed and continue to use primarily to sanctify their own constitutional system. As comparative models, these tropes completely obscure the diversity of constitutional experiences and possibilities found in the world, and even in just the “West.” In fact, they obscure the diversity of important constitutional experiences found in the United States. They thereby create images of exceptionalism, and deviation, and often of simple and inevitable failure, where such do not actually exist. And in doing so, it greatly distorts our understanding of the full range of human “constitutional” possibilities that exist—especially insofar as those of the Global South are concerned, but also insofar as our own “Western” and even American constitutional experiences are concerned.

In this regard, I must confess that I find statements like Don Clarke’s purported description of China’s constitution as “the least important document in the Chinese legal system” quite depressing. I’m not certain I understand what Don exactly means by this, but reading him charitably, I suspect that he means that insofar as China’s positive legal corpus is concerned, the constitution is much less likely to be formally cited than are (other) positive legal instruments. And this is certainly true—as juridical text, China’s 1982 Constitution is non-justiciable. And political actors often act in ways that deviate from its textual commands, particularly insofar as protections of political rights are concerned.

But the idea of a “legal system” can encompass far more than its juridically-authoritative texts (see, e.g., Christine Parker et al.’s Regulating Law). And “importance” (and effect) can resonate in affects that escape formal juridical capture (see, e.g., the “Dreyfus affair” and the invention of laïcité in France). And seen in this broader light, China’s constitution, including its constitutional text, is in fact clearly very important—as evinced, for example, by the extraordinary willingness of a surprisingly large number ordinary Chinese citizens to risk their livelihood and their freedom to promote its particular relevance; and – quite frankly – also by the Chinese government’s own fears of such discussions.

(By contrast, the Chinese government has never found need to seize and detain critics of it’s Securities Law, of which there have been many; nor has anybody shown any willingness to go to jail over issues of its interpretation—this by itself suggests to me that insofar as the Chinese themselves are concerned, the constitution is a more important component of China’s “legal system” than is the Securities Law.)

The problem with Don’s claim, therefore, is that regardless of what he actually meant by it, it will inevitably be read, at least in the US, as confirming our received impressions that “constitutionalism” – meaning the concerns, behaviors, and normative influences associated with the emergence of what we today think of as “Western” ideas constitutionalism in England, the US, and France in the later part of the 18th century – is not and will never be a meaningful component of China’s present political system. This impression is the product of the mythological tropes that I have described above—the ones that Americans developed in the 1880s in order to celebrate and establish the secular-divine superiority of their own constitutional-political system. Don’s description, in other words, will invariably be read as confirming that China’s constitutional experience, if it can be called that, is unique; and is it not of a kind shared by American constitutional understandings.

But this is it most assuredly wrong. The deficiencies that Don appears to be referencing are deficiencies that are common to emergent constitutional systems everywhere, including those that would eventually found the countries that today comprise the developed “West”, and including those of the US.

In fact, the world, including the less comfortable parts of it, has a lot to teach Americans about the nature and possibilities of human constitutionalism. The proper response to discoveries of incidents of apparent constitutionalism in unexpected places -- such as in China, or more recently, in Iran – should therefore be to cause us to critically reevaluate our own understandings of what is constitutionally possible, and hence of what is constitutionally “important,” particularly insofar as emergent constitutionalism is concerned. Far too frequently, however, as is particularly the case with China, our response is simply to dismiss or essentialize such incidents because they fail to conform to our own constitutional litergies—a practice that David Sciulli’s Theory of Societal Constitutionalism has criticized, specifically in the context of American constitutional analysis, as the “fallacy of exhausted possibilities.” (A classic example of this is Fareed Zakaria’s famous disquisition on what he called “illiberal democracy”.) I can’t speak for Stéphanie, but this was my ultimate purpose in putting together this book—in my dreams, it would cause people not simply or even primarily to begin rethinking the possibilities of constitutionalism in China; but more importantly, to begin rethinking the human possibilities of constitutionalism itself.

(In the real world, however, I just hope it will get me a few citations.)

Mike Dowdle


  1. Very interesting discussion. However, I was left with some questions. At least in this post, I don't quite see Mike Dowdle's definition of constitutionalism. He says what it isn't (textuality, jurification, or permanence/stability), but never pins it down. At some points, his definition of constitutionalism seems to include the very act of interpreting constitutions (Federalists v. Anti-Federalists) and any protests related to constitutional rights (the Iranian electoral protests, which had more to do with counting the votes accurately than an actual constitutional right).

    I'd argue that the U.S. Constitution retains much of the flexibility Dowdle prescribes pre-1880 (although the sanctity is more recent). The 17th Amendment changed our government more dramatically than people recognize, removing the states' voices from the federal government. While Americans now pay homage to the constitution, it remains an ideological document and has gone through dramatic reinterpretations even within the past 60 years (Brown, Roe, Mapp and incorporation of the Bill of Rights, Morrison and the commerce clause).

    I think Dowdle does make a good point about how American legal scholars often don't recognize the same range of constitutional interpretations in other cultures or legal systems. We do tend to rely too much on the text, not enough on the context. For this discussion, I refer you to Nathan Brown's "Constitutions in a Nonconstitutional World," which shows how illiberal regimes often practice "constitutionalism" (at least the textualized and permanent aspects) but do not conform liberal constitutional ideals about rights and government. There are even more dramatic examples of when interpretation transforms constitutionalism inside a country, such as when newly democratized governments retain their constitutions (for example, Indonesia's vibrant democracy lives largely under the same constitution as Suharto's New Order).

    The act of interpretation in a sense provides the ether that connects constitutions to constitutional practice. There is a variety of ways and ideological means of interpreting constitutions. However, I think ultimately I still agree with Tom Ginsburg that constitutionalism requires at least some degree of juridification, textualism, and permanence - although how those are practiced and interpreted can vary widely.

    Thanks for the post. I'd love to see more of this debate.

  2. Of course, everyone is free to define “constitution” however they want. But one has to at least be aware of what one is excluding when one adopts a particular definition. Different definitions, and different ways of defining, have their own particular uses—and their own limitations. From the particular perspective of constitutional evolution, I think there’s a danger in trying to offer nominal definitions of constitutions (or constitutionalism) based on essential architectural features, because such definitions too often end up arbitrarily excluding dynamics and forces that are critical to understanding how these “constitutional” features arise in the first place.

    Insofar as exploring for emergent constitutional possibilities is concerned, I would argue that the best way to “define” constitutionalism simply through reference to other systems that we all recognize as constitutional (I know that there’s a term for this particular way of defining things, but I forgot what it is). In other words, something is of potential “constitutional” importance or significance to the extent that we can find it affecting constitutional development in some other system that we all recognize as constitutional.

    Elsewhere, I have discussed at length how one might use this kind of thinking to go about investigating emergence constitutionalism in unfamiliar constitutional systems. (See, e.g., “Public Accountability in Alien Terrain” in Michael W. Dowdle, ed., PUBLIC ACCOUNTABILITY: DESIGNS, DILEMMAS AND EXPERIENCES (2006).) One way is by simply (1) taking what a system says about its own constitution seriously (instead of just habitually dismissing such statements as mere “strategic speech”, which we too often do in the context of unfamiliar systems), and (2) looking for patterns of behavior that show respect for these statements. So in the context of Iran, for example, the fact that the opposition resorted to constitutional arguments suggests that they themselves believes these arguments had weight. And the fact that the leadership responded to their constitutional complaints, even if largely disingenuously, suggests that it, too, regarded the constitution as being of some import. This evinces that constitutionalist arguments of this sort, at least, have some potential weight, and our task, to the extent we are interested in the possible ways that system may develop, is then to see if we can map out how this weight might be evolving. (In fact, I’ve read a read of Mid-east scholars who have been arguing for some time that Iran has one of the Middle-east’s most constitutionalized systems.)

    Along these lines, we also need to be aware that constitutionalism is not simply about rights. It’s really about a kind of discipline. Of course, rights are important. But again, from a developmental perspective, we shouldn’t let the perfect by the enemy of the good. We know that mature, rights-bestowing constitutional frameworks can and have emerged out of younger, more emergent systems in which juridified rights discourse is largely absent. (That having been said, the dispute at issue in Iran is clearly to be a constitutional dispute—its about the “right” – as explicitly granted by Iran – to be governed by an elected government.)

  3. I find Mike Dowdle's developmental perspective towards the Chinese Constitution compelling. If I read him correctly, he suggests that nations view constitutions differently in different stages of development, not necessarily less importantly.

    This, I think, is quite true with respect to the Chinese Constitution. Tom Ginsburg is correct in pointing out that the Chinese Constitution is largely viewed as programmatic and ideological in mainland China. Nevertheless, Hong Kong judges who are bound by the Constitution as well, must view the Constitution as having at least some degree of judiciability, otherwise their authority under the Basic Law of Hong Kong emanating from the Constitution would be undermined. This large contrast in views between Hong Kong and mainland China, while both being subject to the same Constitution, if attributed to a variance in legal development, would support Mike Dowdle's developmental perspective towards the Chinese Constitution.


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